Spurling and Spurling & Ors (No 2)
[2018] FamCA 1130
•20 December 2018 and corrigendum 31 January 2019
FAMILY COURT OF AUSTRALIA
SPURLING & SPURLING AND ORS (NO 2) [2018] FamCA 1130
FAMILY LAW – CHILDREN – Application by wife for final parenting orders – Where wife seeks to relocate interstate with the children – Where husband opposes relocation and seeks orders that children spend equal or significant and substantial time with him – Where Court permits relocation in circumstances where children will spend time with the father – Allegations of family violence – Where order for equal shared parental responsibility is in children’s best interests – Where orders made for children to live with the wife and spend significant and substantial time with the husband.
FAMILY LAW – PROPERTY – Application by wife for a property settlement – Add-backs – Contributions – Gifts – Financial resources.
Family Law Act 1975 (Cth) s 60CC
A v A: Relocation Approach (2000) FLC 93-035
Gosper & Gosper (1987) FLC 91-818
Marriage of Dunbar (1987) 11 Fam LR 901 at 911: FLC 91-846
MWJ v The Queen [2005] HCA 74APPLICANT: Ms Spurling
RESPONDENT: Mr Spurling
1ST INTERVENER:
2nd INTERVENER
Mr J Spurling
Ms K Spurling
FILE NUMBER: HBC 369 of 2017
DATE DELIVERED: 20 December 2018 and corrigendum 31 January 2019
PLACE DELIVERED: Hobart
PLACE HEARD: Hobart
JUDGMENT OF: Benjamin J
HEARING DATE: 13, 14, 15, 16, 19, 20, 21 & 22 March 2018, 8, 9,10 & 24 August 2018 – with the final agreed list of property submitted 13 November 2018 and agreed form of mechanical orders submitted 19 November 2018 REPRESENTATION
COUNSEL FOR THE APPLICANT: Ms BK
SOLICITOR FOR THE APPLICANT: Mr T Fitzgerald of FitzGerald & Browne
COUNSEL FOR THE RESPONDENT: Mr BJ
SOLICITOR FOR THE RESPONDENT: Mr D Wright of Wright Lawyers
COUNSEL FOR THE 1ST & 2ND INTERVENERS: Mr BJ (13, 14, 15, 16, 19, 20, 21 & 22 March 2018) and Mr BE S C on 8, 9, 10 & 24 August 2018.
SOLICITOR FOR THE 1ST & 2ND INTERVENERS: Mr D Wright of Wright Lawyers Orders
PARENTING ORDERS (made 31 May 2018)
(1) Ms Spurling (‘the mother’) and Mr Spurling (‘the father’) shall have equal shared parental responsibility for X born … 2011 and Y born … 2013 (collectively ‘the children’).
(2) The present interim parenting Orders regarding the mother remaining in L Town and the children living with her and spending time with the father shall continue to apply until the end of term 4, 2018.
(3) The children shall live with the mother and the mother be and is permitted to relocate the children to live in Tasmania as and from the end of the time the children spend with the father pursuant to these Orders in January 2019.
(4) As and from the end of the school year 2018 the children shall spend time with the father as follows:-
a)in Tasmania during Tasmanian school terms in weeks 3 and 6 from Thursday at 3.00pm until Monday at 9.00am or Tuesday 9.00am if the Monday selected is a public holiday or a pupil free day;
b)if any Tasmanian school term is for a period of 10 weeks, that the children shall also spend time with the father in Tasmania in week 9 from Thursday at 3.00pm until Monday at 9.00am or Tuesday if the Monday selected is a public holiday or a pupil free day;
c)as and from 2019 during the Tasmanian mid-term school holidays from the first Friday from before 1.00pm until 3.00 pm Sunday before school commences or 3.00pm the following Monday if that day is a public holiday or pupil free day (being 10 nights or possibly 11 nights). For these particular periods of time spent with the father; the mother shall deliver the children to the father at Melbourne Airport at a time reasonably nominated by the mother shortly before 1.00pm on the Friday and the father shall return the children to the Melbourne Airport shortly before 3.00pm on the Sunday or Monday, such time as is reasonably nominated by the mother and dependent upon the reasonably available flights.
d)during the Tasmanian Summer holiday periods as follows:-
i.in 2018 and each alternate year thereafter, from before 1.00pm on the 23rd of December for 28 nights. From 2020 the mother shall deliver the children to the father at Melbourne Airport at the commencement of that time and the father shall return the children to the mother at Melbourne Airport before 3.00pm on the 29th day; and
ii.in 2019 and each alternate year thereafter, from before 1.00pm on the 3rd of January for 28 nights. The mother shall deliver the children to the father at Melbourne Airport at the commencement of that time and the father shall return the children to the mother at Melbourne Airport before 3.00pm on the 29th day.
iii.For these particular periods of time spent with the father, the mother shall deliver the children to the father at Melbourne Airport at a time reasonably nominated by the mother shortly before 1.00pm on the specified day and the father shall return the children to the Melbourne Airport shortly before 3.00pm on the specified day, such time as is reasonably nominated by the mother and dependent upon the reasonably available flights.
e)at school, sporting and other extra-curricular events that otherwise do not fall within the father’s time (assemblies, concerts, sporting carnivals) upon giving the mother 7 days’ written notice. These times are when both parents may be in attendance and these provisions do not otherwise suspend the mother’s time.
f)at other times as agreed between the parties.
(5)The children communicate with the non-resident parent via telephone/Skype:-
a) at least three times a week;
b) on their birthdays at 5.00pm with the non-resident parent to initiate the call and the other parent to facilitate the call;
c) on Christmas Day at 10.00am with the non-resident parent to initiate the call and the other parent to facilitate the call;
d) on Easter Sunday at 10.00am with the non-resident parent to initiate the call and the other parent to facilitate the call;
e) on Father’s Day, if the children are not already spending time with the father (and the father shall be entitled to change a weekend time to ensure that the children are with him on that weekend), at 10.00am with the mother to initiate the call;
f) on the father’s birthday at 5.00pm with the mother to initiate the call;
g) on Mother’s Day (and the mother shall be entitled to change a weekend time to ensure that the children are with her on that weekend), at 10.00am with the father to initiate the call; and
h) on the mother’s birthday at 5.00pm with the father to initiate the call.
(6)If the father is living in the L Town area and the mother in Tasmania, then notwithstanding any other order in the event that the Easter break is not in a school holiday period the children shall spend time with the father over such Easter period and the mother shall deliver the children to the father at Melbourne Airport shortly before 10.00am on Easter Friday and the father will return the children to the mother at Melbourne Airport shortly before 3.00pm on the Monday following Easter Sunday or 3.00pm on the Tuesday if it is a school holiday or pupil free day. Such times to be reasonably nominated by the wife and dependent upon the reasonably available flights.
(7)In 2020 and each alternate year thereafter, unless otherwise provided, if Easter occurs in the school holiday period the children shall spend time with the mother from Good Friday until the following Tuesday.
(8)Neither parent shall threaten, harass, abuse, assault or denigrate the other parent, nor allow the children to remain in the presence or hearing or a third party who is threatening, harassing, abusing, assaulting or denigrating the other parent.
(9)If either of the children is involved in any medical emergency the parent who has care of the children shall notify the other parent as soon as reasonably practicable.
(10)The father is restrained from accessing or using any firearm whilst the children are spending time with him. This Order shall operate for a period of three years from the date of making this Order.
(11)If the father decides to live in Tasmania, then instead of the spend time arrangements set out above the children shall spend time with the father as follows:-
a)during school term for each alternative week from after school/childcare on Thursday to the start of school/childcare on Monday. Such time to commence the first Thursday after school term commences if the children were primarily with the mother the last week of the preceding school holiday period and the second Thursday after school term commences if the children were primarily with the father the last week of the preceding school holiday period;
b)during the Tasmanian mid-term holidays from after school on the Friday being the last day of term to 12.00 noon on the middle Saturday of the school mid-term holiday;
c)during the Tasmanian summer holiday periods as follows:-
(i)in 2018 and each alternate year thereafter, from after school on the last day of the school year for one half of the school holiday period until 12.00 noon on the middle day of that period; and
(ii)in 2019 and each alternate year thereafter, from 12.00 noon on the middle day of that school holiday period until two days before school commences; and
(iii)at school, sporting and other extra-curricular events that otherwise do not fall within the father’s time (assemblies, concerts, sporting carnivals) upon giving the mother 7 days’ written notice. These times are when both parents may be in attendance and these provisions do not otherwise suspend the mother’s time.
(12)If both parents are living in Tasmania, notwithstanding any other order the children will spend time:-
a)with the father from 9.00am on Good Friday until 9.00am the following Tuesday in 2019 and each alternate year thereafter; and
b)with the mother from 9.00am on Good Friday until 9.00am the following Tuesday in 2020 and each alternate year thereafter.
(13)Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(14)The Family Law Rules 2004 (Cth) providing time for an appeal are varied to the extent that the appeal period in respect of these Orders shall commence 28 days from the date of the making of any property orders in these proceedings or such other date as is specified by the Court on the application of either party or the Independent Children’s Lawyer.
IT IS NOTED
(15)The property and parenting proceedings are being dealt with under the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) and the property proceedings are presently part heard and the parenting proceedings have been completed. The parties requested that and acquiesced to the parenting reasons being delivered at the same time as the property reasons and property orders.
IT IS CERTIFIED
(16)Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
PROPERTY
BY DETERMINATION IT IS ORDERED
(17)The claims made by the wife against the first and second interveners, including that for the plant and equipment valued at $2,692,500, are dismissed.
(18)The husband shall pay to the wife $1,908,146 and such sum to be paid:
a)On or before 22 February 2019; or
b)such longer time as is agreed between the parties; or
c)at such other time determined by this Court at the request of either party; and
d)for a period of three months from the date these orders are perfected, leave is given to the parties or either of them to apply for variation of the time to pay.
BY CONSENT IT IS ORDERED
(19)Simultaneously with the payment being made pursuant Order 2 the husband and the wife do all acts and things and signs all documents to cause the Spurling Partnership (ABN ...) to be dissolved as at the 30 June 2018.
(20)Simultaneously with the payment being made pursuant Order 2 the wife shall resign as a Director of F Pty Ltd (ACN ...) and shall transfer her shares to the husband effective as at 30 June 2018.
(21)Simultaneously with the payment being made pursuant Order 2 the wife shall transfer to the husband all her right, title and interest including any shares in the following entities relating to the N shares effective as at the 30 June 2018:-
a)N Limited (or the former company N Pty Ltd) (ACN ...);
b)O Pty Ltd (ACN …);
c)P Pty Ltd (ACN …);
d)N unit trust; and
e)Any other legal entity created or associated with and arising out of the above N entities.
(22)Simultaneously with the payment being made pursuant Order 2 above, the wife shall transfer all her right, title and interest to the husband in the properties at C Street, D Town NSW (folio …, folio: Auto Consol …, folio Auto Consol …) and E Street, D Town, D Town NSW (folio …).
(23)Simultaneously with the payment being made pursuant Order 2 above, the wife shall transfer all her right, title and interest to the husband in the water licences at “C Street” and E Street WAL …1, WAL …7, WAL …8, WAL …5.
(24)Simultaneously with the payment being made pursuant Order 2 above, the husband shall cause to be discharged through payment of or refinance all crop liens, loans, lines of credit, overdraft facilities, and guarantees currently held in the names of the husband and/or wife in relation to F Pty Ltd, Spurling Partnership, N Limited (or the former company N Pty Ltd), O Pty Ltd and P Pty Ltd, N Unit Trust or any other entity associated with or created by the entities of N and either party in their sole name into his name alone including but not limited to:-
| C Street Property Facilities | |||||
| Asset Finance | Balance | Payment Amount (noting that these are not the amounts to be paid, but just the instalment payments usually paid.) | Due | Repayment Frequency | Contract number |
| Farm machine 1 | $43,133.47 approx | $23,198.00 | 10/08/19 | Yearly | 30846 |
| Farm machine 2 | $43,743.24 approx | $23,525.69 | 10/08/19 | Yearly | 30849 |
| Farm machine 3 | $164,149.30 approx | $87,201.46 | 16/08/19 | Yearly | 57653 |
| Farm machine 4 | $207,652.37 approx | $79,389.73 | 07/09/19 | Yearly | 67126 |
| Farm machine 5 | $253,856.75 approx | $101,313.21 | 11/09/19 | Yearly | 77942 |
| Farm machine 6 | $81,808.75 approx | $49,080.06 | 29/08/19 | Yearly | 3743 |
| Tailored Commercial Facility (TCF) Original Limit | Payment Amount | Due | Repayment Frequency | Contract Number | |
| $2.1 million | $2,100,000.00 approx | $133,000.00 approx | 25/09/18 | Yearly | …01 |
| $4.0 million | $4,000,000.00 approx | $234,800.00 approx | 21/09/18 | Yearly | …93 |
| $3.0 million – 2 payments | $1,000,000.00 approx | $46,700.00 approx | 25/09/18 | Yearly | …86 |
| $2,000,000.00 Approx. | $47,850.00 approx | 21/09/18 | 6 monthly | …45 | |
| Business Loans | |||||
| $1 million Business loan | $840,772.00 approx | $135,825.95 | 04/04/19 | Yearly | #41 |
| $2 million Business loan | $2,000,000.00 approx | $2,000,000.00 | 19/01/19 | Yearly | #21 |
| Revolving (overdraft) | $500,000 approx | Interest only | #68 | ||
AND
The balances (as at the date if these Orders) of the following liabilities identified as the following liability items set out in the joint balance sheet as set out on page 3 of the husband’s written closing submissions (“The Joint Balance Sheet”)”:-
Item 28 - Outstanding production
Item 29 - Freight (C Street)
Item 30 - freight (U Farm)
Item 31 - U Farm /V Farm lease payment
Item 35 – Equipment hire instalment should the Court find it is a relevant liability Item 37 - Trade debtors
(25)The husband shall provide documentary evidence to the wife of the discharge of all liabilities under paragraph 8 (within seven days of the discharge of each liability).
(26)The husband shall assume sole responsibility for the following debts currently jointly owed to the interveners by the husband and wife:-
a) Number 26 debt to the interveners (E Street purchase $520,000);
b) Item 27 debt to the interveners surface water (2017/18 – 800megalitres at 150ml) $120,000; and
c) simultaneously with paragraph 1 shall provide to the wife written acknowledgement of satisfaction of debt owed by the wife to the interveners, signed by the interveners.
(27)Until final payment of all monies due to the wife under these orders, the wife shall be entitled to register a caveatable interest over the properties and rights at C Street and E Street and shall withdraw such interest upon final payment to her of all monies due to her under these orders.
(28)A declaration that the husband and wife have no right, title or interest in the plant and equipment owned by the interveners as determined by the Court as being owned by the interveners and the interveners shall indemnify the husband and wife in relation to all liabilities which relate to such plant and equipment.
(29)A declaration that the interveners have no right, title or interest in the plant and equipment owned by the husband and wife as determined by the Court and which will be transferred as a consequence of these Orders to the husband.
(30)If the husband defaults in any of his obligations created by orders 2, 8, 9, 10 or 12, after 90 days the wife be at liberty to instruct an agent to sell all the plant and equipment declared by the Court to belong to husband and wife pursuant to paragraph 13 above and apply the net monies firstly to the satisfaction of Order 2 and then to the satisfaction of Orders 8 and 10; with the balance to be paid to the husband; and the husband will make all such items available and until sale keep them insured and in good order and condition.
(31)The parties forthwith do all acts and things to cause to be transferred the Horse Float, Horses, Saddlery and the 4WD motor vehicle to the wife.
(32)The wife be entitled to the exclusion of the husband to her Superannuation.
(33)The husband be entitled to the exclusion of the wife to his Superannuation.
(34)All items of furniture and furnishings currently held by the husband and wife be declared the sole property of the party who has the possession or control of it.
(35)In default of the payment due to the wife under order 2 above or the payments due by him under orders 8 or 10 above, the properties at C Street and E Street including all water rights, shall be sold and the wife shall then be paid out of the settlement monies the payment due to her under orders 2, 8 or 10 together with interest at the prescribed rate under the Family Law Rules 2004 (Cth) from the date payment was due until the date of actual payment and the following provisions shall apply:-
a) On or before 28 February 2019 or such extended date as is agreed in writing by the husband and wife or ordered by the Court, the parties shall either agree a market value of the property at C Street together with its associated water rights (C Street) and E Street together with its associated water rights (E Street) (together the “the properties”) or failing agreement the parties shall by no later than 28 March 2019 at their own individual expense each appoint a registered valuer to provide a market valuation (“the market value”) of the properties; and in the event:-
(i) those market valuations differ then the market value shall be the average of those valuations; or
(ii) either party refuses or neglects to obtain the market valuation as provided for in this paragraph the market valuation obtained by the other party shall be the market value and be binding on both parties.
b) The properties shall:-
(i) Be marketed at sale prices agreed upon by the parties and upon terms agreed by the parties. Failing agreement as to prices, the sale prices shall be the market value of the properties;
(ii) Be sold on such terms and at a price or prices agreed upon by the parties and failing an agreement, for the market value and upon such terms as the real estate agent appointed pursuant to subparagraph (iii) herein shall recommend;
(iii) The parties shall jointly appoint a lawyer and real estate agent to conduct the sale of the property, and if the parties cannot agree on a lawyer or the agent within seven days of being requested by the other to do so, then the parties shall have liberty to apply on this discrete issue;
(iv) The husband shall make the properties available for inspection by the prospective purchasers’ at all reasonable times and on reasonable notice from any real estate agent appointed to sell the property;
(v) Pending completion of all obligations to transfer properties between the parties, each party shall maintain all property and plant and equipment in their respective possession in good order and condition, keep all property and plant and equipment insured and not sell any water licences prior to the sale of any property and/or licences;
(vi) Upon completion of sale the proceeds of sale shall be applied as follows:-
(A)Payment of rates, water, land tax and other outgoings and real estate agent fees and disbursements;
(B)Legal fees;
(C)A sum set aside in trust for capital gains tax as calculated by the parties accountant;
(D)All secured debts set out in items 23, 24, 25, 32, 33, 34 and 36 of the Joint Balance Sheet;
(E)Payment to the wife;
(F)All unsecured debts;
(G)The debts to Mr J & Ms K Spurling set out at items 26, 27 and 35 of the Joint Balance Sheet if still owing or unforgiven.
(36)A declaration that subject to the wife’s option to sell contained in order 14 above, that there be a declaration that the husband is the sole legal and beneficial owner of all plant and equipment enumerated in Table 1 of E17 and valued at item 2 of the Joint Balance Sheet; together with the scare guns, at item 14 and the machine at item 22.
(37)The lint, seed popcorn and income as enumerated at items 17-19 of the Balance Sheet be applied only towards the husband’s reasonable personal living expenses and reduction of any of the debt listed in the Balance Sheet.
(38)The husband shall be responsible for and indemnify the wife in respect of the past and future liabilities, including but not limited to all capital gains tax, Division 7A tax, income tax and any other taxes:-
a) Of him in his personal capacity;
b) Both husband and wife as Directors of F Pty Ltd;
c) As partners in the partnership of Spurling Partnership; and
d) In relation to N Limited (and the former company N Pty Ltd), O Pty Ltd, P Pty Ltd and N Unit Trust or any other entity created or arising out of those N entities in relation to;
(i) Her capacity as a shareholder of those companies;
(ii) Her capacity as a related party of the husband in those companies and the unit trust;
(iii) Her capacity as a direct or indirect unit holder in the unit trust.
(39)The husband shall be responsible for and indemnify the wife in respect of all and any other tax liabilities in relation to F Pty Ltd, Spurling Partnership, N Limited (and the former company: N Pty Ltd), O Pty Ltd, P Pty Ltd, N Unit Trust or any entity created or arising out of a N entity in the following capacities of the wife:-
a) Any income received or due to the wife;
b) Amounts which the wife is deemed to have earned or received;
c) Amounts assessed to her by the Australian Taxation Office for any reason; and
d) Amounts assessed to her by the Australian Taxation Office in any capacity including in her own rights; as a Director of any company; as a shareholder of any company; as a beneficiary of any trust and as an associated person of another party.
(40)The husband in his personal capacity and as a Director of F Pty Ltd unconditionally and irrevocably indemnifies the wife and will keep her indemnified in relation to:-
a) Land and water leases owed or claimed by the interveners in the 2018/19 year;
b) Land and water lease claimed by Ms T being leased for the 2018/19 year;
c) Plant and equipment payments, lease payments or charges owed or claimed by the interveners;
d) F Pty Ltd trade debtors;
e) F Pty Ltd employee entitlements and superannuation;
f) Spurling Partnership trade debtors;
g) F Pty Ltd equipment finance facilities; and
h) Spurling Partnership equipment finance facilities.
(41)The husband unconditionally and irrevocably indemnifies that wife against all losses, damages, costs, charges, liabilities and expenses which the wife may at any time suffer or incur directly or indirectly in relation to any claim brought against F Pty Ltd save for any breach of duties as Director at law.
(42)If the parties have not already done so, they shall forthwith provide all information and documents to the parties’ accountants and sign all documents necessary to complete the taxation returns for F Pty Ltd, Spurling Partnership, and in their individual personal capacities for the financial year ending 30 June 2018.
(43)The husband shall pay the Australian Taxation Office, to the exclusion of the wife any taxation liability associated with F Pty Ltd and/or Spurling Partnership to the end of the financial year, 30 June 2019.
(44)The husband will pay to the Australian Taxation Office to the exclusion of the wife any BAS payment associated with F Pty Ltd and/or the Spurling Partnership.
(45)The husband will pay to the exclusion of the wife any capital gains tax associated with any of these Orders or arising out of any action pursuant to the implementation to these Orders.
(46)As far as necessary, a declaration that the husband is entitled to all proceeds from any cropping, farming, permanent plantings or other agricultural operations associated with and connected to F Pty Ltd and Spurling Partnership as from the date of these Orders.
(47)The parties within 14 days are to do all acts and things and sign all documents to cause the ANZ term deposit to be transferred to the husband.
(48)Otherwise than as provided for in these orders, each party shall relinquish in favour of the other party any claim to any right, title or interest in all items of property presently in the possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, jewellery, shares, superannuation or life entitlements.
(49)Both parties shall within a reasonable time do all acts and things, sign all documents and give all consents necessary to give force and effect to these orders.
(50)In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, that the Registrar or a Deputy Registrar of the Family Court of Australia be appointed pursuant to S 106A of the Family Law Act 1975 (Cth) to execute the deed or instrument in the name of that party and to do all acts and things necessary to give validity and operation to the deed or instrument.
(51)Unless already stated, all time limits in these orders can be varied by written agreement between the parties.
(52)There be liberty for a period of up to six months from the date of these orders for the parties to apply as to the time limits, machinery provisions and additional procedural orders of these orders.
(53)All extant applications be and are dismissed except as to any applications for costs which are to be dealt with according to the Family Law Rules 2004 (Cth).
(54)At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.
THE COURT NOTES
(55)The diamond ring referred to in the joint balance sheet was handed over by the wife to the husband and interveners during the course of the trial.
(56)The proceedings in so far as they relate to the first and second interveners are concluded save and accept any application for costs.
(57)Pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS CERTIFIED
(58)Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spurling & Spurling and Ors (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
CORRIGENDUM
FAMILY COURT OF AUSTRALIA AT HOBART
FILE NUMBER: HBC 369/2017
Ms Spurling Applicant
And
Mr Spurling Respondent
And
Mr J Spurling
First intervener
And
Ms K Spurling
Second intervener
JUDGE: Benjamin J
DATE OF JUDGMENT: 20 December 2018
WHERE MADE: Tasmania
CORRIGENDUM: 31 January 2019
1.Paragraph 673 of the reasons is amended to provide an adjustment of ‘5 per cent’.
2.Paragraph 675 of the reasons is amended to provide in the first sentence ‘that will mean that the wife will end up with property totalling $2,051,803 and the husband with property totalling $6,155,407 out of a total property pool of about $8,207,210.
3.These corrections arose out of two typographical errors in the judgment. The first that the word ‘seven’ was put in paragraph 673 where it was intended that the word ‘five’ be put in. The second was that the amount retained by the husband was incorrectly expressed as being the total value of the property when the amount retained by him is $6,155,407.
4.Given the delays and with the consent of both parties the orders were perfected and issued as and from the date of this corrigendum, vis 31 January 2019.
Associate:
Date: 31 January 2019
FAMILY COURT OF AUSTRALIA AT TASMANIA FILE NUMBER: HBC 369 of 2017
Ms Spurling Applicant
And
Mr Spurling Respondent
And
Mr J Spurling
First IntervenerAnd
Ms K Spurling
Second IntervenerREASONS FOR JUDGMENT
INTRODUCTION
1.The marriage of Ms Spurling (‘the wife’) and Mr Spurling (‘the husband’) effectively ended when they separated in April 2017. They are unable to agree about the parenting arrangements for their two children nor are they able to agree about the scope and division of property that they accumulated during their marriage.
2.Like many parties who find their way to contested hearings, their relationship had been failing for some time before the date of separation and in this case there is some evidence that the failure commenced years before. The animosity between these parties was palpable. These parents deeply love their children and that love is reciprocated. Sadly, such are the mutual inter party emotions of anger, loss and distrust, neither parent could find a pathway to a negotiated settlement about their children or division of property. This circumstance does not bode well for the parties and their children into the future.
3.With property the wife gave evidence that effectively her contributions to the acquisition and maintenance etc. of their property was undervalued and that the husband is effectively punishing her. The husband seems, at this stage at least, unreconciled as to the marriage breakup and concerned that the wife is claiming far more than that to which she is entitled and has taken the children away from him.
4.I urge these otherwise decent people to take a step back from the abyss that is entrenched conflict. They should reflect on how they can now forge an effective parenting alliance to enable their delightful children to retain a strong and meaningful relationship with both their mum and dad. Childhood is a precious gift which can easily be lost in the emotional storm of parental conflict and marriage breakup.
5.The parenting and property proceedings were heard over eight days in March 2018 and four days in August 2018.
6.The reason for this was that there were complex property proceedings with huge advances of property from the interveners and a circumstance that part of the property was a very valuable crop, which needed to be harvested. The value of the crop and the cost of harvesting and processing the crop were not known until August 2018.
THE PARENTING ISSUES
7.The parties have two children, X (‘the elder child’) aged seven and Y (‘the younger child’) aged five (collectively ‘the children’).
8.The parties had lived together on farming properties near L Town in New South Wales and until April 2017 they operated as an intact family.
9.With the April 2017 separation, the wife had unilaterally relocated her residence and that of the children to Tasmania. She did this so that she could live close to or with her family. On 26 June 2017 a Judge of the Federal Circuit Court ordered the wife and children to return to L Town pending the outcome of these parenting proceedings.
10.The wife has lived in L Town since that time, but continues in her desire to return to Tasmania with the children and live close to her parents and her broader family.
11.The husband has lived in the L Town area most of his life and that is where his family is based. At one stage, he contemplated moving to the Tasmania area to be close to his children, however, he has decided at present to remain in the area where his business is based and his family reside.
12.The primary issue that had separated these parents in terms of consensual parenting arrangements was that the wife, with the children, wished to return to live in Tasmania to be close to her family. The husband wanted the children to live in the L Town area close to him and his family.
13.The parenting proceedings were conducted pursuant to the provisions of Div 12A of the Family Law Act 1975 (Cth) (‘the Act’).
14.Consequently, all of the evidence regarding parenting and the substantive evidence of each of the parties in respect of property was given in the March 2018 part of the hearings. With the procedural consent of the parties, final parenting orders were made on 31 May 2018. Those orders provide that the parents have equal shared parental responsibility for their children, that the children live with the wife and that she be permitted to relocate, with the children, to live in Tasmania at the beginning of the 2019 year to better manage the children’s changes of school.
15.The orders provided for extensive time between the children and the husband during school holidays and the ability for the husband to spend time with the children during term. It also contained other relevant orders.
16.The parties were on notice that these orders would be made prior to the finalisation of the property proceedings and that the reasons for the parenting orders would be published at the same time as the property orders were made and the reasons for those orders were set out.
17.As such, without encouraging or discouraging an appeal, the time for appeal in relation to the parenting orders were extended until after the property orders were made and reasons delivered.
18.As I indicated earlier, the children are caught in the whirlwind of events of hostility, lack of trust and litigation which surrounds the breakup of their parents’ marriage following separation in April 2017.
19.The husband and wife essentially agree that the children should be the subject of an order for equal shared parental responsibility. I have made that order.
20.By determination, the children are to live with the wife and spend significant and substantial time with the husband and have regular communication with him.
21.This being a Division 12A proceeding, the reasons for the parenting orders are contained in these reasons.
PROPERTY ISSUES TO BE DETERMINED
22.Given the complex nature of the proceedings the parties gave written consent for the property part of the proceedings to be also dealt with under Div 12A of the Act pursuant to s 69ZM(2)(b). That consent was tendered in evidence.[1]
[1] Exhibit E9.
23.The property proceedings were complex for a number of reasons. First, the husband and wife had been the recipients of significant direct and indirect financial contributions from the husband’s parents, Mr J Spurling (‘the first intervener’) and Ms K Spurling (‘the second intervener’) (collectively ‘the interveners’).
24.The harvesting of crops involves the use of expensive machinery which requires significant maintenance and which wears out. The husband and wife acquired farming properties and water rights in August 2015. .
25.A part of the machinery used for the farming operation of this property was plant and equipment which was the property of the interveners. This has an agreed value of $2,692,500. There was a dispute as to the equitable ownership of this plant and equipment.
26.The husband supported the case asserted on behalf of his parents, Mr J and Ms K Spurling, the interveners (‘collectively the interveners’). Prior to any determination as to property between the husband and the wife, it was be necessary for me to make a determination as to whether that plant and equipment[2] is the property of the parties or if it is the property of the interveners.
[2] Exhibit E26 item 17.
27.The wife asserted in a statement of claim (which was required to be filed in these proceedings) that this plant and equipment had been gifted to her and the husband in August 2005. The interveners filed a response to that statement of claim and denied such gift and claimed that the machinery was and remained their property. They said that they allowed the husband and wife to use the machinery provided the husband and wife or their farming business met the leasing costs on the machinery, paid insurance on the machinery, and repaired the machinery. They allowed the husband and wife to use the machinery for working their own crops and allowed them to hire out the machinery.
28.In submissions counsel for the wife also asserted a number of other equitable remedies in relation to that machinery. However, that claim was not asserted until the very end of the hearing and after evidence had closed. Those claims were not permitted to be argued.
29.For the reasons set out below this Court has determined that the machinery was not gifted to the husband and wife and rather remains the property of the interveners.
30.A collateral issue arose once it was determined that the plant and equipment was the property of the interveners and not the husband and wife, that is whether that plant and equipment amounted to a financial resource available to the husband for which the Court should make some adjustment.
31.This was a difficult claim for the wife to propound. Part of her case in respect of the plant and equipment was her claim that had she known that the plant and equipment was property of the interveners and not property of her and/or the husband, she would have looked at alternatives to the use of the interveners’ plant and equipment. Her rationale in that respect was that by paying the leasing expenses, hundreds of thousands of dollars in maintenance, insurance and the like, it would have been far cheaper to look at other options such as acquiring their own plant and equipment, if they could, or hiring other plant and equipment.
32.The husband’s case was that despite the cost asserted by the wife, it was still a significant benefit for them to have access to that machinery. Given the state of the evidence and the husband’s concession, I have determined that the plant and equipment was a modest financial resource and I have included it in that adjustment.
33.Once the Court made a determination in respect of the plant and equipment, it was then a matter for the Court to determine the adjustment of property as between the parties.
34.There were a range and variety of other issues that needed to be determined. However, the substance of the issues was, not unexpectedly, some other relatively minor issues as to some liabilities, and the contributions having regard to the generosity of the interveners. The parties each submitted that otherwise in terms of effort and family support for the children and the like their contributions were equal. From there it was necessary to consider the other factors including the 75(2) factors.
35.By the time the August 2018 hearing dates came about the crop had been harvested and to their credit the parties and their legal advisors agreed on all of the property pool, apart from the ownership of the interveners’ plant and equipment. The final agreed balance sheet was confirmed by agreement of the parties evidenced in a joint email to my legal associate on 24 October 2018, which is now the amended exhibit E26.
36.Consequently, the pool of assets was agreed apart from the dispute over the plant and equipment allegedly gifted by the interveners. The liabilities were agreed apart from some issues in regard to farm lease payments, picker hire from picker number 4 and trade debtors.
37.I have determined the pool of property (without the interveners’ plant and equipment) at $8,207,210.
38.The next significant issue in respect of the property was the weight to be given to the financial contributions provided by the interveners. The husband and wife operated a farming business in Region W. In the context of that farming the husband and wife acquired real property, water rights and other property. Much of this was as a consequence of the significant financial contributions by the interveners and it is clear that the parties could not have achieved the material wealth that they presently enjoy without the financial largess of the interveners.
39.The interveners facilitated the purchase of a property by the parties at E Street and through intergenerational transfer provided to the husband and wife C Street at a cost to the parties of $8 million dollars. E Street and C Street (land and water) now have an agreed value of $17 million dollars. The transfer of C Street to the husband and wife was less than two years before the parties separated.
40.There were other advances to the husband and wife including shares in a plant called N which has a value of about $1,416,591. It has been necessary to go through each of these gifts to determine the nature and extent of them.
41.The question then was: how should I treat the contributions of each of the parties?
42.It was the wife’s case that if the plant and equipment is included her contributions were 75 per cent to the husband and if it is not included her contributions were 70 per cent to the husband.
43.In his oral submissions counsel for the husband asserted that the contributions were:-[3]
[3] Transcript of Proceedings dated 24 August 2018, lines 18 to 44, page 66.
MR BJ: In relation to percentages generally, in my submission, if your Honour was to find that there was a contribution, combination of intergenerational transfer, combination of items outlined in Mrs – in the tender bundles of [the second intervener] if your Honour was to find those, your Honour would not be in error to, on an overall basis, to a 80/20 split of the total pool. That’s incorporating the 75(2) considerations.
HIS HONOUR: That’s incorporating the three to five per cent.
MR BJ: Yes. That’s right.
HIS HONOUR: So your client’s – the husband’s case is that on contribution it should be 75 to 78 per cent on your client’s part.
MR BJ: Yes. In circumstances where your Honour wasn’t to find the 6 million or 6 million plus contributions, then obviously that would erode down.
HIS HONOUR: Does that apply if the plant and equipment is excluded or included?
MR BJ: Excluded. We say – with respect, your Honour, the law is very clear in that issue. I’ve made some written submissions in relation to your Honour, in my view, will need to make a finding that the plant and equipment isn’t included. Obviously a matter for your Honour. So in my percentages, I’ve already factored in that that is out.
HIS HONOUR: Okay. Yes.
MR BJ: I don’t think I have anything further for your Honour.
44.Counsel for the husband asserted that the whole of the property should be adjusted as to 80 per cent to the husband and 20 per cent to the wife. He said he had included in these figures an amount of three or five per cent by way of other factors including the 75(2) factors.
45.This must mean that the husband assert that contribution by him, and in particular through his family’s gifts, was between 83 and 85 per cent.
46.The wife sought 45 per cent of the pool, whether or not it included the interveners’ plant and equipment.
47.It was submitted by her counsel that if the plant and equipment of the interveners’ was included then the contributions of the wife must be less and gave a figure of 25 per cent and in that circumstance the wife sought an adjustment for the so called s 75(2) factors of 20 per cent, giving an outcome of 45 per cent.
48.If on the other hand the interveners’ plant and equipment was excluded then the contributions on behalf of the wife must be greater at 30 per cent and it was submitted that in relation to the so called s 75(2) factors there ought to be a 15 per cent adjustment in her favour, giving an outcome of 45 per cent.[4]
[4] Ibid– pages 3, 4, 5, 6 and 24.
49.There is no issue between the husband and wife that there ought to be an adjustment of property given the failure of their marriage in April 2017.
50.It was conceded by counsel for both the wife and the husband that each of them came into the relationship armed with love, hope and confidence, but neither had any significant items of material property. I accept that assertion of fact by the parties.
51.It is asserted by the parties that their respective families have provided significant emotional and physical support for them in their care of the children and that but for the financial support provided by the interveners the contributions are otherwise equal.
52.The issues to be determined were:-
(a)the intervener’s plant and equipment claimed by wife;
(b)the U Farm / V Farm lease payment - whether $338,800 or $440,000, viz a $101,200 difference;
(c)whether there is a liability to the interveners for the payments made by them which they regard as a ‘dry hire’ of machines number 1, 3 and 4 totalling some $187,000;
(d)whether the trade debtors are $3,242,077 as asserted by the wife or whether they are $3,316,677 – a difference of $74,600;
(e)the adjustment as to contributions;
(f)the so called 75(2) factors; and
(g)an overall assessment as to what in all of the circumstances is just and equitable.
53.There were some issues of add-backs in an earlier balance sheet. However, this was excluded in the final October 2018 balance sheet.
BACKGROUND
54.Counsel for the husband asserted that the Court could rely on the chronology prepared by counsel for the wife.[5]
[5] Exhibit E2 Part G page 5 of 7.
55.The first intervener is aged 64 and the second intervener is aged about 63. They are farmers.
56.The wife is aged 37 and she describes her occupation as a farm director, although her primary function at the moment is as carer for the parties’ children. The wife was a consultant for a number of years and eventually took work in L Town after the parties’ commenced cohabitation. She is in good health.
57.The husband is aged 36, he is a farmer by occupation. He commenced employment with the interveners in 2000. He has expertise in farming as set out in his affidavit and he was not seriously challenged in terms of that expertise.
58.The interveners purchased the C Street Farm in September 2003 and the husband commenced management of that property.
59.The parties commenced a relationship in December 2004. In September 2005 the parties commenced living together at the C Street Farm, which was then owned by the interveners. The parties married in 2008.
60.In August 2010 the interveners leased E Street Farm. That is a five hectare property located about fifty kilometres south of L Town. It is has water rights.
61.In 2011 the parties’ elder child was born, six weeks prematurely. This involved the elder child being in hospital for a period of time and the maternal grandmother and grandfather came to the L Town area to assist the wife. The elder child is presently aged seven years.
62.A diamond ring was given to the wife in mid-2011. That ring has been returned to the interveners, although its value is treated as an asset of the parties for the purpose of these proceedings. The existence of that asset was a significant contribution by or on behalf of the husband’s family and I have had regard to that in terms of contribution. I have treated it as property of the husband.
63.The parties established a company called F Pty Ltd and the Spurling Partnership in November 2012. In December 2012 the husband and wife completed the first transfer of the purchase of E Street.
64.In 2013 the younger child was born. She is presently aged five.
65.In July 2013 the second transfer of E Street Farm with water was completed and the parties borrowed just under two million dollars from the ANZ Bank and had the assistance of cash of $730,000 and a crop income provided by the interveners since December 2012. There was a loan of $520,000 from the interveners to the husband and wife. That liability of $520,000 was acknowledged as a liability by the parties.[6] The loan was evidenced by an undated deed and undated and unregistered mortgage, apparently signed by the parties.[7] The deed and mortgage provided that the loan was interest free. That is a significant contribution and I have had regard to it.
[6] Exhibit E26 item 26.
[7] Exhibit E4, Volume 3 – pages 576 to 585.
66.During 2014 the interveners were involved in a dispute with the National Australia Bank.
67.In March/April 2014 the husband and wife acquired shares in N processing plant. The loan for that purchase was guaranteed by interveners. I have had regard to that in terms of contribution. This is a grower-owned plant. The interveners paid some interest on the loan, to the extent of $135,189.[8] I have had regard to the money advance and the interest paid in terms of contribution.
[8] Affidavit of second intervener filed 27 February 2018 paragraph 94(1).
68.C Street Farm is 907 hectares of property contiguous to E Street. . It has water rights and a dam. At the end of August 2015 the parties purchased C Street from the intervener’s and the contract did include some limited plant and equipment.[9]
[9]Exhibit E4 – contract commencing at page 420 and plant and equipment at pages 426 and 427.
69.In 2016 the parties refinanced the National Australia Bank loan for N shares and the interveners were released from their guarantees.
70.In February 2017 the parties had an argument in the context of the husband wanting to purchase an irrigation system. In the same month the wife travelled to Tasmania between 12 and 21 February 2017. The parties attended joint counselling in February 2017.
71.On 12 April 2017 the wife travelled with the children to Tasmania and notified the husband on 21 April 2017 that the marriage had broken down. I accept that the date of separation was 21 April 2017.
72.The wife enrolled the elder child at a private school in Tasmania where he remained from May 2017 until July 2017.
73.The wife commenced proceedings in the Federal Circuit Court on 20 April 2017 and sought parenting orders, including permission to remain in Tasmania. Those proceedings were heard in the Federal Circuit Court on 21 and 22 June 2017. On 26 June 2017 orders were made that the children return to the Region W area no later than seven days before the commencement of the next New South Wales Gazetted School Term, and that the children live with the wife and spend time with the husband.
74.There was a finding in that proceeding that the wife had unilaterally relocated the children to Tasmania in April 2017; that fact was not in issue. In accordance with the order made in the Federal Circuit Court the wife returned to L Town and she has resided there since that time.
75.In June or October 2017 the parties made preparation for liquidation of the assets and relocation of both parties to Tasmania, although this was not pursued by the husband. In December/January 2018 the parties disagreed over the control issues of their company and the husband attempted to put the company into administration. The parties resolved the issues by negotiation.
76.In January 2018 the parties attended mediation to try and resolve their conflict. This was not successful.
77.The proceedings were listed for hearing in the Federal Circuit Court in March 2018. In December 2017 the hearing before the Federal Circuit Court was vacated and the proceedings were transferred to the Family Court.
78.On 13 December 2017 the interveners were joined as parties to the proceedings.
79.The proceedings were heard over eight days in March 2018 and four days in August 2018. At the commencement of hearing the parties agreed that the property proceedings should also be determined under Division 12A of the Act.
80.I viewed the properties of C Street and E Street in May 2018. I was accompanied by the solicitor for the wife and counsel for the husband. We were guided by Mr Z. Mr Z is a farm manager/agronomist and manages the properties for the husband and wife. He was reminded and accepted that anything he said in terms of explaining the properties was subject to the oath he gave in March 2018.
81.Final parenting orders were made in late May 2018.
82.The husband and interveners chose to use Mr Wright of Wright Lawyers to represent them during the course of these proceedings. In the March 2018 hearing days Mr BJ of counsel represented the interveners and the husband. In fairness the Court had been told that Mr BE was to appear for the interveners, but that he was unable to appear in March 2018 as he was involved in a criminal trial, which had taken longer than expected.
83.When the matter came back for further determination and submission in August 2018 the interveners were represented from that time by Mr BE SC. Mr BJ continued to represent the husband. Mr BE SC and Mr BJ were each instructed by Mr Wright. No objection was taken by the wife or her advisors to this course.
84.The parties indicated in their final submissions that the final agreed balance sheet[10] would be forwarded soon after the hearing was adjourned on 24 August 2018. That final balance sheet was provided on 24 October 2018. The parties said that they would send an agreed form of consent mechanical orders soon after the hearing adjourned on 24 August 2018. That form of consent order was sent on 19 November 2018. I made some cosmetic changes to those orders such as deleting the word ‘that’ at the commencement of some orders. I made the money order, which was contested in a form I determined. Further, I provided that the dates for undertaking tasks could be varied by agreement between the parties or by mechanical order of this Court.
[10] Exhibit 26.
85.In addition as the wife made claims against the interveners under the accrued jurisdiction of the Family Court. I made orders disposing of her claims in an orderly way.
86.In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context.
THE EVIDENCE
Mr AA
87.The husband adduced evidence from Mr AA. Mr AA provided evidence in his affidavit sworn 30 July 2018 which was read in evidence without objection.
88.Mr AA lives in RR Town and was in a relationship with the wife from January 2018 to April 2018. Mr AA deposed that he had a discussion with the wife in April 2018 where he was shown a photograph of the wife which was taken in October 2015, about two months after the husband and wife acquired C Street, and about eighteen months before the parties separated.
89.Mr AA observed that the wife looked different and the wife said to him at that time “if you look at that photo you will see how unhappy I am, I had already realised when that was taken that my marriage was over and I was just needing to find a way to end it. I just didn’t know how”.
90.In some regards this evidence impeaches that of the wife. In respect of the parties’ relationship the wife gave evidence about the status of her relationship and asserted that at the time the parties acquired E Street in August 2015 she wanted the marriage to work.
91.The wife said in evidence on 16 March 2018:-[11]
MR [BJ]: If that was the case, and then you’re telling me that you were terribly disillusioned with your marriage by at least June 2013?
THE WIFE:Mnn
MR BJ:why did you go ahead and buy [E Street]? I think that was bought in the year before, wasn’t it sorry? When was the … farm bought?
THE WIFE:2012. December 2012.
MR [BJ]:Okay. So why did you go ahead and buy the … farm because that’s a huge – I mean, you’re taking on?
THE WIFE:Because I – I wanted to be able to get – get over it- to get over it, and to keep the family together. I had just had a little baby. I had a little toddler when I – I mean, I loved [the husband] very much, and I wanted it to work.
[11] Transcript of Proceedings dated 16 March 2018, page 330 lines 12 to 22.
92.I am satisfied that the wife was not entirely frank when giving evidence as to the status of her marriage at around the time the parties acquired C Street.
Mr BB
93.Mr BB provided an affidavit on behalf of the husband which was sworn 22 August 2018 and filed in the Court on 24 August 2018. That affidavit was admitted into evidence without objection and Mr BB was not required for cross-examination. I treat his evidence as being uncontentious.
94.In his affidavit Mr BB provided a history of N Pty Ltd (‘N’), a company which was registered in August 2013. N is situate in CC Town in the Region W area of New South Wales. N provides processing services to growers in the Region W area.
95.The financial circumstances of the set-up of the business was provided. In April 2014 the husband and wife acquired 15,433 shares in N at a value of $972,279. I am satisfied that this was funded by way of a bank loan of $900,000 and that the interveners provided the balance of $72,279 by way of a gift to the husband and wife. I will treat that as a contribution of $72,279 by the interveners.
96.I am aware that the value of those shares is now somewhat lower, being $723,891.
97.In June 2015 the husband and wife acquired further shares by paying $119,952. These shares now have a value of $89,307.96.
98.Mr BB said that the interveners signed a supply agreement in 2013 and a service agreement in 2017 and that they supplied produce in accordance with that agreement.
99.As a consequence they received rebates totalling $246,363.77 which were issued by way of shares to the husband and wife and have a current value of $183,400.29.
100.In 2017 and 2018 there were allocations of shares to the husband and wife with a face value of $189,885.49 and $168,803.16, which were the rebates for the 2015/2016 season and the 2016/2017 season, respectively.
101.It is estimated that for the 2017/2018 season there will be a rebate of about $221,047.84 which will have a value of about $152,536.51 for the 2017/2018 season. The parties have asked the Court to accept that estimate. I have accepted that figure.
102.The schedule to the affidavit of Mr BB is indicative of the number of shares, the amount credited and the current value of those shares.
103.Those shares and their current value are set out in the affidavit of Mr BB. [12] The amounts listed by Mr BB are identical to the amounts agreed by the parties in these proceedings.
[12] At paragraph 25.
Ms DD
104.Ms DD is a director of EE Pre-school who gave evidence that both parents engaged with the school including about any issues that may have developed. Her affidavit filed 27 February 2018 was read into evidence. She gave evidence that both parents were involved with the pre-school and that when the children needed to be dropped off or picked up it was normally undertaken by the husband.
105.There was an issue as to the extent of the husband’s involvement with the children. The question of picking up was an issue between this witness and the wife. It was not necessary to call this witness to put this proposition to her and I have treated the evidence on the basis that it was challenged.
106.As I say elsewhere in these reasons, it is likely that the husband’s involvement with the children was greater than that asserted by the wife and a little less than that asserted by the husband.
Mr FF
107.Mr FF is a bus driver of the D Town School and has been the driver since 2001. His affidavit filed 27 February 2018 was read into evidence. In 2015 and 2016 he drove the parties’ children to and from school during school term. He gave evidence as to his observations of the interaction between the children and the husband and said that the husband was the main person who would put the children on the bus and who would pick them up from the school bus. He estimated this was 90 per cent of the time.
108.He was not required for cross-examination, however, I accept that his evidence was in direct conflict with that of the wife. As I have said elsewhere, I have treated the wife’s evidence as understating the involvement of the husband and the husband’s evidence as overstating it.
Ms GG
109.Ms GG is the children’s maternal grandmother (‘the maternal grandmother’). She provided evidence in terms of her affidavit filed 23 February 2018. She gave evidence that she and her husband Mr MM are the parents of the wife and grandparents of the subject children.
110.The maternal grandmother provided evidence of her regular interaction with the wife and gave details of her visits from February 2012 until April 2017. Her involvement with the family has been extensive.
111.She spent time with the wife and husband on the property and clearly had a close relationship with the husband and his family. The maternal grandmother gave evidence of assisting the wife in terms of her financial assistance to the wife and the costs of the children’s education in private schools in Tasmania.
112.In respect of the relationship between the wife and the husband, she said that she had some minor concerns, but was not aware nor did she observe any sign of family violence.
113.As to her relationship with the wife, she says that she has a loving relationship with her daughter and it is above average and they communicate regularly either in person, as set out in her affidavit, or by telephone two or three times a week. Irrespective of the outcome, the maternal grandmother said she will continue to support the wife and the children.
114.She did not observe the husband to cook many meals and when she was at the property she observed that the husband spent many hours at work.
115.Her evidence is supportive of the wife, however I am satisfied that she endeavoured to give her evidence truthfully and I have had regard to her evidence in that light.
116.The maternal grandmother was asked whether there were incidents or an incident of relationship breakdown between the wife and the maternal grandmother. I am satisfied that there is no breakdown of the relationship. There was one or perhaps two occasions where there was a minor argument between mother and daughter, which is neither here nor there.
117.This witness was closely aligned with the wife and I have treated her evidence cautiously.
The second intervener
118.The second intervener is the paternal grandmother of the subject children. She gave evidence in terms of her affidavit filed 27 February 2018. It was read into evidence.
119.When the second intervener commenced giving evidence she was quite upset as she had heard the evidence and the emotional evidence of the wife as to the allegations of violence prior to the second intervener going into the witness box. It took her a little while to settle down.
120.The second intervener believed that the husband and wife had verbal stoushes, but did not believe that there was domestic violence.
121.She expressed that she was upset with both the husband and wife as the interveners felt betrayed by them in not telling them of the nature of their relationship at times when they were committing many resources to them. Her evidence was that she felt betrayed by both the husband and the wife.
122.The second intervener gave evidence that she enjoyed her ‘nanny days’ and looked after the children at least one day, possibly more, a week. The children stayed overnight from time to time and she has a close relationship with the children.
123.In paragraph 11 of the second intervener’s affidavit she says that she loved and cared for the wife very much and is still devastated that the wife’s role in their lives has changed. She said when the parties were in a relationship she spoke with the wife by telephone, email, text and in person most days. She said if the parties were in conflict the wife would call or drop in and she would share her wisdom. She says she considered herself to be a surrogate mother to the wife.
124.In paragraph 12 of her affidavit she says she genuinely feels sorry if the wife felt that she and the first intervener were controlling of her and in her relationship with the husband.
125.At paragraph 17 she says she has tried to be open and inclusive of the wife and has tried to ensure that the wife did not have the same experiences she did as a young married woman living in a rural community.
126.At paragraph 18 of her affidavit she says she still cares very much for the wife and she is welcome in their home and lives at “whatever level she feels comfortable with”. She goes on to say that the wife should “feel no anxiety that our relationship is in any way injured or harmed by the current proceedings”. There was some criticism of the second intervener for not contacting the wife following separation, particularly after the wife had been forced to return to L Town from Tasmania. The second intervener said that she and her husband had sent a text message to the wife’s father saying they were available for the children.
127.The second intervener said she struggled in relation to how to contact the wife and whether it was appropriate to contact the wife. This was impressive evidence on her behalf. She was not cutting the wife off from her, but did not wish to interfere.
128.The second intervener gave further evidence during the hearing commencing 8 August 2018. She was cross-examined by counsel for the wife over a significant period of time.
129.On 21 March 2018 the husband and interveners tendered a series of documents in support of their claims to contributions set out in the second intervener’s affidavit which has been tabulated in Exhibit E17. That Exhibit was updated with a bundle of documents contained in a letter to the Court of 30 July 2018. That letter was not read, but was tendered with the additional pages on the first day of the August 2018 hearing with the consent of all parties, those additional pages were added to the tender, as was the letter.
130.The parties had the ability to peruse and go through those documents between March and August 2018.
131.Her source of information was the first intervener (her husband) and the documents referred to in Exhibit E24. She was frank in not knowing what crops were on some parts of the land; she clearly had some information but did not have the detailed information, as did the husband and the first intervener.
132.The second intervener was cross-examined in relation to paragraph 40 of her affidavit and said that she was not precisely aware of what land was leased. I accept her evidence in that regard.
133.The second intervener was at times emotional when giving evidence and clearly found the process of cross-examination difficult. She was cross-examined in relation to the debt that she claims the gift by her and the first intervener of $2.7 million dollars by the transfer of C Street. I accept that she genuinely believed that this was the value of that gift. As to the contributions, her evidence was that with picker 2 there was no issue that it had an agreed value of $400,000 and was given to the husband and wife by way of a gift. It was a contribution by the interveners to the husband and wife of some $223,056.
134.I carefully watched the second intervener giving evidence. She was clearly emotionally impacted by the failure of the relationship between the husband and the wife. She made concessions against interest.
135.I am satisfied that the second intervener had a close relationship with the wife and that that support is still available to the wife, but that it is unlikely to be sought or accepted. I accept the second interveners’ evidence as being generally reliable and thoughtful. I am satisfied she was endeavouring to provide truthful answers to questions. She was a frank witnesses although her evidence was coloured by her love of her son.
136.Her evidence was not impeached through the cross-examination. I have treated her evidence as being reliable.
The first intervener
137.The first intervener is the paternal grandfather. He gave evidence in accordance with his affidavit of 27 February 2018. He was a little bit more confrontational than was the second intervener. The first intervener said that he felt deep hurt, particularly in relation to criticisms of him and the second intervener in the interlocutory applications.
138.The first intervener has not spoken to the wife since separation. The first intervener knew nothing about the alleged hole punched in the wall or the other alleged family violence between the husband and wife. He does not believe his son committed family violence. He says this because his son tells him everything, including the events of the November 2012 with the so called ‘flirtatious’ text messages. He said he did not see the text messages. He was protective of the husband. That the first intervener did not witness the family violence or hear of it from either the husband or the wife; that, of course, does not mean that it did or did not happen.
139.He observed his son on many occasions caring for the children when he and the second intervener went to the E Street farmhouse.
140.It was put that the first intervener was ‘running down’ the assistance or work of the wife. I did not see this as the case from the material before me by this witness; there was more sadness and disappointment.
141.The first intervener gave further evidence in these proceedings in August 2018.
142.He conceded that the interveners grew an alternative crop on lots 17, 18 and 19 at U Farm in 2018. He said that water was not used for that crop; it was a dry crop as there was sufficient rain. He provided evidence that he used his own equipment to plant, water and harvest the crop and that he used it as it was a break from the previous land usage. He asserts, and I accept, that it did not otherwise impact on the husband and wife’s crop of 2017/2018.
143.In relation to the other crop, the first intervener gave a reasonable explanation: that is that he decided to plant the crop and take the risk in respect of it.
144.I am satisfied that while partisan the first intervener was endeavouring to provide truthful answers to questions. He was a frank witness, as were all the grandparents, although their evidence was coloured by their love of their respective children. I treat his evidence as reliable.
Ms HH
145.Ms HH provided material in the husband’s Tender Book[13] as to his engagement with her for psychological treatment. The husband has seen this psychologist on a fortnightly basis from August 2017, save for January 2018.
[13] Volume 1, page 129 to 134.
146.She said, and I accept, that the husband was suffering from low level depression following the breakdown of his relationship, his change in role in terms of his children’s lives and his difficulty in finding a balance between the wife’s desire to relocate to Tasmania with the children and his obligations as a parent.
147.It is a credit to the husband that he has undertaken this counselling and it is indicative that he will continue to be involved in the children’s lives.
Family Consultant
148.Ms II is a family consultant employed by the Family Court (‘the Family Consultant’). She provided evidence in terms of her report[14] dated19 February 2018. She was cross-examined by counsel for both the husband and wife.
[14] Exhibit E15.
149.There was robust cross-examination of the Family Consultant by counsel for the wife. She was provided with the current report from JJ school,[15] which particularly relates to the family consultant’s concerns about the elder child’s issues at school. She was also provided with the letter from SS School,[16] which showed that the elder child settled well into SS School when he was there for a term in 2017.
[15] Exhibit E16
[16] Exhibit E4 husband’s Tender Bundle Volume 2 pages 323 and 324.
150.She was also cross-examined in relation to the alternate explanation of the speech therapist Ms KK.[17] It was put to Ms KK that the child’s problems, which the Family Consultant had observed could have arisen from the disorder which the speech therapist had discovered.
[17] Exhibit E3 wife’s Tender Bundle Volume 1 pages 42 and 43.
151.I do not accept that approach, nor did the Family Consultant. It is noted that the words of the speech therapist were that there was a disorder which may be contributing to the difficulties. I accept the evidence of the Family Consultant that the elder child had attended three schools in 2017 and had experienced his parent’s breakdown.
152.The Family Consultant recommended that:-[18]
[18] Exhibit E15 Family Report dated 19 February 2018.
1. It is recommended that [the wife] be permitted to relocate to Tasmania with the children following the end of the 2018 school year.
2. That until the relocation, it is recommended that the children live with the [wife] and spend significant and substantial time with [the husband].
3. That following relocation, the children spend time every third weekend with [the husband] in [Tasmania] and spend school holiday time with [the husband] in NSW as per the following:
(a) Ten nights during the term school holidays;
(b)Four weeks of the summer school holidays, with this time being inclusive of the Christmas period each alternate year.
75. That the children have contact with [the husband] via phone or Skype at least three times per week.
153.In coming to these recommendations the family consultant provided an evaluation based on her observations, readings and her expertise; her qualifications were not in any way impeached. She said:-
57. The central issues in this matter are the possible impact of the proposed relocation on the children’s relationships with [the husband] and their paternal family in the event it was to occur; and the impact on [the wife’s] mental health and emotional well-being in the event it was not to occur.
58. The allegations of family violence in the relationship remain disputed by the parties. However, information gathered in interview and from subpoenaed information does appear to support [the wife’s] assertion that [the husband] perpetrated verbally and physically abusive and controlling behaviours towards her. While it appears, from the information provided in interview and from the file documentation, that [the wife] also perpetrated verbal abuse and physical violence towards [the husband], the suggestion that such behaviour was in direct response to that displayed by [the husband] towards her is considered to be a likely possibility.
59. There have been no allegations to suggest that the family violence has continued post separation. Although [the wife] expressed herself to remain generally fearful of [the husband], this interim period appears to have settled these fears somewhat with her suggesting that it is family and social support that is now the main motivator for the proposed relocation as opposed to safety reasons as asserted in the initial post-separation period. While [the wife’s] fears may well have been allayed somewhat, it would likely remain of benefit to her feelings of safety and well-being if direct handovers were minimised as much as possible, for example making arrangements whereby the children transition from one parent’s care to other’s through school or day-care.
60. Issues of family violence can also have implications for the co-parenting relationship, even once these behaviours have ceased. While the parties have demonstrated that they can maintain a functioning co-parenting relationship based on the needs of the children, they have also acknowledged the ongoing tension between them due to past events and this appears to influence their overall experience of this relationship. Given the future co-parenting dynamic will exist in the context of past family violence, of which control may have been a significant factor, the parties may benefit from engaging with community mediation and support services, such as those provided by [LL Group] (…), to navigate joint decision making regarding contentious or challenging issues for the children. Such services are generally able to facilitate mediation with geographically distant parties when required.
61. With regards to allegations of [the husband] exposing the children to his emotional distress, [the husband] has denied these claims but the information provided by both children in interview was suggestive of at least some level of exposure to this. It is noted that this has likely been a highly distressing and turbulent time for [the husband] given his expressed shock at the separation and associated relocation and his initial wish for reconciliation. That said, moving forward, it will be important for the well-being of both children that they are protected from feeling distressed or guilty due to the parenting arrangements and are supported and reassured by both parents to assist them in managing the current situation. It is likely that [the wife] and [the husband] would both benefit from counselling to support their parenting and well-being in this context.
[121] Ibid - page 101.
[122] Exhibit E24 volume 2 page 681 to 683.
611.There is no doubt that the payments have been made. The invoice was dated 23 March 2017 and has been paid. I am satisfied that it is more likely than not to have been water used by the husband and wife for their crop and that it was paid by the interveners.
612.As such I will treat this as a contribution by the interveners for the benefit of the husband and wife.
4WD (wife’s car)
613.The interveners purchased a new 4WD for the husband and wife at a cost of $80,019.46. The wife retained that vehicle which has a current value of about $20,000. It is unclear as to the wife’s position. The wife admitted the payment, but said it was in essence a payment by way of wages to the husband and that he was grossly underpaid or has agreed to the contribution.[123]
[123] Wife’s summary of closing argument – page 18.
614.I accept that $80,019 was a significant direct financial contribution by the interveners on behalf of the husband and wife.
XY Pty Ltd invoices
615.The wife agrees with this item of $16,904.80 and also the following item to the same company for an amount of $10,098.[124]
[124] Ibid.
616.As such I accept that the interveners made a direct financial contributions on behalf of the husband and wife to the extent of $27,002.80.
YZ Auctions invoices
617.These have been the subject of some discussion. It was agreed between the parties that a scare gun had been obtained from YZ Auctions for the crop at a cost of $7,948.26 which was paid by the interveners.
618.It is agreed between the parties[125] that I should treat that as a direct financial contribution by the interveners to the husband and the wife. I have done so.
[125]Ibid.
619.The evidence of the husband was that one of these invoices was for a pump which was traded in and the other was a scare gun which is still being used. I accept that this money was paid by the interveners of $15,885.75 and $7,948.36 and it was a direct contribution (these are the identical items referred to in item 21 and 22 of E23).
Surface Water $72,260.50
620.This is different to the claim for surface water of $117,600, which claim was not pressed as it was agreed between the parties that this was an actual debt.[126]
[126] Exhibit E47 page 5 item 27.
621.In 2016 and 2017, 845ML at $65 per mega litres was claimed to have been utilised by the husband and wife in their DE Town farming operations. This was supplied and paid for by the interveners.[127]
[127] Exhibit E24 – Volume 1 pages 347 to 350.
622.I accept the evidence of the husband that this was water which was needed for the crops. The husband’s evidence was that there are two leased areas which between them have 3,300 mega litres, one thousand eight hundred on one and the balance on the other.
623.On one of the properties they needed additional water which was the surface water on DE Town of 845 mega litres.
624.The wife’s submission in this respect was that there was a water allocation on the properties of which the parties had the use, namely 3,300 mega litres of water and that was sufficient. She asserts that the interveners failed to discharge the evidentiary burden.
625.I have concerns about the reliability of the assessments of the water cost and use by the wife, particularly as the 3,300 mega litres of water was on two properties which were geographically apart.
626.As such I am satisfied on all of the evidence that the husband and wife had the benefit of that $72,260.50 of water and I will treat it as a contribution by the interveners on behalf of the husband and wife.
Additional contribution
627.There is an agreed contribution by the interveners to the value of $20,172.11. I will treat it as a contribution by the interveners on behalf of the husband and wife.
Conclusion as to contribution
628.The interveners have made significant direct and indirect financial contributions to the parties over many years. One of these contributions was over $2 million and was relatively recent. The others were measured in hundreds, tens and thousands of dollars. I have set them out above, as best I can. Much of the wealth of these parties has overwhelmingly come from the contributions of the interveners. This was sensibly recognised by counsel for the wife who suggested a figure of 25 per cent. The husband suggested a lower percentage. Having considered all of the evidence and the submissions of the husband and the wife, I determine that the contributions favour the husband as to 80 per cent and to the wife 20 per cent.
OTHER FACTORS SET OUT IN SECTIONS 79(4)(e) to (g) OF THE ACT
629.The wife asks for an adjustment to her of 20 per cent, which gives an overall disparity of 40 per cent between the husband and the wife
Section 75(2) of the Act Factors
(a) The age and state of health of each of the husband and wife;
630.The wife is aged 37 and the husband is aged 36. There were no issues as to their respective health outlooks.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
631.The wife will end up with about $2,000,000 in property and liquid assets.
632.Counsel for the wife contends that the husband will be the owner of a significant farming business and asserted that the Court can “find that as a result of this settlement the husband has the capacity to make a significant income”.[128]
[128] Exhibit E48 - Summary of oral closing submissions for the wife - page 20.
633.Further, the wife asserts that the husband has a ‘bright future’[129] ahead of him. She relies upon the crop this year, which has been quite successful. She does acknowledge the husband may have bad years and concedes that liability-wise he will have a heavy burden to bear once he pays out the wife. However, she says it is “his choice”[130] as he has “changed his plans”[131] and decided not to sell the farm to relocate to Tasmania to be close to the children.
[129] Ibid.
[130] Ibid.
[131] Ibid.
634.It is clear the husband will end up with a multi-million dollar business however, it will be highly geared as the business will have significant liabilities totalling some $20 million plus the money the husband will need to pay to the wife pursuant to these orders.
635.It is clear from the evidence of the parties that the farming business will be dependent upon the success or otherwise of the crops into the future, which if good can give rise to high profits, as is the case with the current crop, and poor profits, as in the case of the preceding years crops.
636.It is equally clear that the husband will be the subject of these substantial liabilities for a number of years to come.
637.Counsel for the husband submitted that the husband will continue to operate a large farming operation through which “millions of dollars go in and millions of dollars go out”, in circumstances where the parties wealth was built as a direct consequence of the increase in water and land, not from the “day to day benefits” which arise from the actual farming operation itself.
638.He said it was “not to say [the husband] will not be able to draw an income,” but rather would have to “give weight” to how the income was applied. In doing so regard would need to be given to the parenting orders which the Court had already made requiring the husband to travel to Tasmania on a regular basis to see the children. Accommodation costs, travel and time away from the business are all needed to be taken into account and met by the husband.
639.I accept that the husband has the capacity to make a significant income, he also has the capacity to make significant losses.
640.Counsel for the husband submitted that the wife “throughout the proceedings, has on a numerous occasions under cross-examination, expressed her belief in her own competency in relation to the parties’ farming operations”. He said she is a trained professional with experience in the banking sector. He asserted the “suggestion that she will not be able to relocate to Tasmania and build her (sic) life, in terms of employment, is simply without foundation, and the Court would have little concern that her level of competency would make her an attractive candidate for the employment market in Tasmania”. Further, he asserted that the wife before making the application to the Court “must have satisfied herself ... she was able to obtain employment, she is able to make a new life for herself down here which would assist in her share of support of the children”.
641.The wife is a trained professional and has worked in a bank. However, I accept the submission by counsel for the wife that the wife has not worked as an in her profession for many years. I am asked to accept that a proportion of the wife’s property will go towards the day to day support of her and the children. I accept that a modest amount is likely to do so, however it is also likely that the wife can obtain some form of employment in the short to medium term.
642.The wife is planning to undertake studies in a different field. I am satisfied for the short term and medium term the wife’s income earning capacity will be far less than that of the husband.
643.Once the wife is settled in Tasmania it is likely that she will re-train and it is likely that she can earn a modest to good income given her training and education to date.
644.I reject the submission made on behalf of the wife that the wife should be treated as an unemployed single mother with an aged skill set and no career prospects. Clearly she does have career prospects. She has available to her significant help from her family which is likely to be ongoing.
645.It was submitted that the husband would have a financial resource in terms of the plant and equipment that belongs to the interveners, in the event that the wife’s claim in that respect fails. That claim has failed however, the evidence in regard to the plant and equipment is not clear.
646.The wife asserts in her evidence that the amount paid by way of maintenance of the equipment which measured in hundreds of thousands of dollars a year, and lease payments, repair on equipment that wears out, and insurance and the like are far higher than the costs would have been to hire such equipment.
647.It is the case of the husband that such expenses are less than the cost of hiring such equipment, particularly bearing in mind that the equipment is able to be used to create income as well.
648.I cannot be satisfied that the amount paid to the interveners for the use of that equipment is either too high or not high enough. The husband will clearly need such equipment for cropping into the future. I have given a very modest adjustment in terms of the use of that equipment.
(c)Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
649.The wife, as a consequence of the parenting orders, will have the care of the two very young children of the marriage, which I have discussed elsewhere, and will carry the major burden of their day to day care. However, she will have her parents to assist her and the husband when he spends time with the children in Tasmania in accordance with the orders.
(d)Commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
650.As I have said elsewhere, the wife will have the care of the parties’ two very young children of the marriage. She will have the benefit of the property settlement.
651.As discussed elsewhere, the husband will have the benefit of with a multi- million dollar business however, it will be highly geared as it will have significant liabilities totalling some $20 million plus the money the husband will need to pay to the wife pursuant to these orders. The husband will be the subject of these substantial liabilities for a number of years to come.
(e) The responsibilities of either party to support any other person;
652.Neither of the parties have formed other relationships or are cohabiting with any other person.
(f) Subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) Any law of the Commonwealth, of a State or Territory or of another country; or
(ii) Any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
653.This factor was not addressed by either party.
(g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
654.In his affidavit the husband provides some indication as to the lifestyle the parties enjoyed and said, and I accept, that he was significantly involved in the care of the children including some of their day to day care.
655.The impact of these proceedings and the failure of the parties’ relationship will mean a diminution of the lifestyle and standard of living of both of the parties.
(h)The extent to which the payment of maintenance to the party whose maintenance is under consideration will increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
656.Counsel for the wife asserted that ‘the wife will have no spousal maintenance’.[132] However, the wife has not sought spouse maintenance and no order has been made in that respect. It is open for the parties to enter into an agreement with regard to child support and school fees.
(ha)The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
[132] Exhibit E 48 – Summary of oral closing submissions for the wife – page 20.
657.There was no evidence that these orders will impact upon the ability of any creditor to recover the debts.
(j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
658.In making these determinations I have accepted that each of the parties worked very hard during their relationship and the wife’s care of the children enabled the husband to devote his time and energy to the farm.
(k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
659.The parties were in a relationship from September 2005 until April 2017. By the time these reasons are delivered it will be approximately eighteen months or so since separation.
(l)The need to protect a party who wishes to continue that party’s role as a parent;
660.I have had regard to the wife’s desire to continue in her role as a parent, although she has significant social and family connections in Tasmania.
(m) If either party is cohabiting with another person – the financial circumstances relating to cohabitation;
661.Neither of the parties have formed other relationships or are cohabiting with any other person.
(n)The terms of any order made or proposed to be made under s 79 in relation to the property of the parties;
662.The proposed orders and the parenting orders of 31 May 2018 will have an impact on the wife’s earning capacity. This includes that the wife will have the day to day care of these relatively young children, and given that she has been permitted to relocate to Tasmania she will not have the assistance that she might otherwise have had if the husband had been living closer. This is not a criticism of either the husband or the wife.
(na)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide, or might be liable to provide in the future, for a child of the marriage
663.The wife contends that the current child support assessment is inadequate. That assessment[133] shows that the husband has been assessed to pay child support of $231.67 per month for the period 3 August 2017 to 2 November 2018.
[133] Exhibit 29.
664.It is equally clear that over this period of time the husband has been paying the wife’s accommodation expenses and providing other financial assistance for the wife and the children. In his trial affidavit filed 27 February 2018 the husband indicated that private schooling was open to him subject to the financial resources available to the farm.
665.The husband confirmed that he will pay child support as assessed and I am satisfied, given his approach to the support of the children so far, that he will meet their reasonable expenses as they fall due. He was paying the wife’s some $1,500 per week and he has been paying private health insurance for the children.
666.Counsel for the husband submitted, in relation to child support, there is “an assessment which has taken place” and the Court would, in his view, “allow the Child Support Agency to do what the Child Support Agency does”. He said it was open for the wife to bring a change of assessment application in the future. Counsel also asserted that there was no departure application before the Court, and consequently the Court could not deal with this issue.
667.I have had regard to the current child support assessment, which will expire in November 2018, and I am satisfied that the husband has provided and will provide in the future for the children of the marriage.
668.There is no evidence that the husband has manipulated his income as asserted by counsel for the wife. What has happened is that these parties purchased C Street and had one good year of followed by a bad year with some over expenses, during which period of time their marriage failed.
(o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
669.Counsel for the wife asserted that I need to ‘second guess’ the parties’ agreement in relation to the debt of $520,000 payable by them to the interveners. I do not intend to do so. I do not take into account the large amount of money that may be owing to the interveners. That is a matter for them. There is no evidence that they will give that money to the husband; quite the contrary, the interveners both expressed their unhappiness and if not bitterness that they had paid so much to the parties in the circumstances of their marriage.
670.The first intervener made it clear that his unhappiness was directed not just at the wife, but also at his son, the husband, as well.
671.The wife asserts that there ought to be an adjustment of 20 per cent in her favour in the event that the plant and equipment was included and 15 per cent if it was not included. Either way it was to be an adjustment as to 45 per cent to her overall.
672.Counsel for the husband submitted that there ought to be an adjustment in relation to the other factors of three to five per cent in the wife’s favour. One of the factors I need to take into account is the substantial net capital which the husband will have as a consequence of these orders.
673.Having considered all of the facts and circumstances I am satisfied that there ought to be an adjustment of seven per cent in favour of the wife in regard to these property proceedings.
Assessment of just and equitable
674.Accordingly, if I adopt the process I have set out above that the property would be divided as to 25 per cent to the wife and 75 per cent to the husband.
675.That will mean that the wife will end up with property totalling about $2,051,803 and the husband with property totalling about $8,207,210. The husband would have significant liabilities, but the capacity to have great success at farming, subject to weather and the risks associated with any agricultural business. The wife would have a significant amount of money to accommodate and care for herself and the children in Tasmania.
676.I am satisfied that overall that that settlement would be just and equitable in all of the circumstances.
677.As such I will so order. In the husband’s final submission he sought an order that he pay the wife by 15 January 2019.[134] By email dated 10 December 2018 from the wife’s solicitor, they husband and wife sought ‘a bare minimum of 6 weeks’ to pay the property settlement. Given that these reasons are to be delivered shortly before the Christmas break I have ordered that the husband pay the wife the sum determined on or before 22 February 2019. This is 6 weeks into the New Year.
[134] Husband and interveners’ case outline page 39.
678.Given all of these circumstances I do not intend to make the order relating to guns as sought by the wife.
Add-Back
679.The wife at one stage claimed an add-back of $16,716.07, being the monies paid by the husband for the transcript of these proceedings over eight days in March 2018. The wife asserted in evidence that she did not need a transcript as her instructor had made meticulous notes which met her needs. That may well be the case however, the transcript was available to all parties and referred to by the parties during the course of the subsequent proceedings.
680.Given that this matter was heard over a period of twelve days in total in two tranches, one in March 2018 and the other in August 2018, I am satisfied that this was a reasonable expense incurred by the husband and, in all of the circumstances, ought not to be added back.
681.It is open for the interveners, the husband and/or the wife to make application/s for costs. This could include an application seeking orders that for reimbursement of all or part of the transcript fees. I neither encourage nor discourage such an approach, it is simply expressed to make clear that it is open to the parties under the Family Law Rules 2004.
I certify that the preceding six hundred and eighty-one (681) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 20 December 2018.
Associate:
Date: 20 December 2018
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